PLJ Volume 84

THE CONSTITUTIONAL STATUS OF DISBELIEF!
Florin T. Hilbay!!
INTRODUCTION
The case of Estrada v. Escritor1 should, by now, be famous.2 In that
case, the Supreme Court announced a new model for evaluating Free
Cite as Florin Hilbay, The Constitutional Status of Disbelief, 84 PHIL. L.J. 579, (page cited) (2010).
Assistant Professor, University Of The Philippines, College Of Law. LL.M., Yale Law School. LL.B.
University of the Philippines. A.B., University of Santo Tomas. Some aspects of this paper were presented at
the Fifteenth Annual Law and Religion Conference, held in 2008 at Brigham Young University Law School,
Provo, Utah.
1 The case appears in two separate volumes of reports, corresponding to the first decision remanding the
administrative matter and the second dispensing with the merits. 408 SCRA 1, A.M. No. P-02-1651, Aug. 4,
2003. (hereinafter Escritor I); 492 SCRA 1, A.M. No. P-02-1651, June 22, 2006. (hereinafter Escritor II).
2 The basic facts as narrated in the opening paragraphs of Escritor I, at 50-52, are as follows:
!!
In a sworn latter-complaint dated July 27, 2000, complainant Alejandro Estrada

wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court
of Las Pinas City, requesting for an investigation of rumors that respondent Soledad
Escritor, court interpreter in said court, is living with a man not her husband. They
allegedly have a child of eighteen to twenty years old. Estrada is not personally related
either to Escritor or her partner and is a resident not of Las Pinas City but of Bacoor,
Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is
committing an immoral act that tarnishes the image of the court, thus she should not be
allowed to remain employed therein as it might appear that the court condones her act.
. . .
Respondent Escritor testified that when she entered the judiciary in 1999, she was
already a widow, her husband having died in 1998. She admitted that she has been living
with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they
have a son. But as a member of the religious sect known as the Jehovahs Witnesses and
the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity
with their religious beliefs. In fact, after ten years of living together, she executed on July
28, 1991 a Declaration of Pledging Faithfulness, viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio,
Jr., as my mate in marital relationship; that I have done all within my ability to obtain legal
recognition of this relationship by the proper public authorities and that this is because of
having been unable to do so that I therefore make this public declaration pledging
faithfulness in this marital relationship.
I recognize this relationship as a binding tie before Jehovah God and before all
persons to be held to and honored in full accord with the principles of Gods Word. I
will continue to seek the means to obtain legal recognition of this relationship by the civil
authorities and if at any future time a change in circumstances make this possible, I
promise to legalize this union.
Signed this 28th day of July 1991. (internal citations omitted).
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PHILIPPINE LAW JOURNAL
[VOL 84
Exercise and Non-Establishment Clause claims. Under the benevolentneutrality/ accommodation paradigm, which the Court borrowed from
American sources,3 religion is recognized as having played an important role
in public life. This descriptive account of the historical role of religion in the
United States is then transformed into a normative theory of how
constitutional law in the Philippines should relate to attempts to use religion
and religious beliefs in the public sphere.4 On the one hand, this should not
be momentous in a country where religious practices in public institutions
are allowed5 and whose Constitution institutionalizes religious practices that
are susceptible to constitutional attack in more secularized jurisdictions.6
On the other hand, the legitimation of constitutionally suspect practices
through the formal adoption of an overtly religion-friendly doctrine raises a
warning flag for secularists who worry about the further entrenchment and
continued privileging of non-rational belief systems.
One, and perhaps the most tempting, way of assessing the impact of
benevolent-neutrality/accommodation is by looking at the consequences of
Escritor in terms of the benefits to the religious and their favored institutions.
The exemption from the application of the Civil Service Law on disgraceful
and immoral conduct7 of the kind of relationship Soledad Escritor had
entered into is no minor pass, and surely even conservatives happy about
benevolent-neutrality/accommodation would not be so excited about the
Escritor I, at 111-29.
This, by itself, is a fascinating subject for comparative constitutional law scholars, but which shall be
dealt with only in passing in this Article. In essence, the problem, as was pointed out by Justice Carpio in
dissent, is the cherry picking of foreign sources by the majority. He pointed out in Escritor II, at 118:
3
4
It is true that a test needs to be applied by the Court in determining the validity of a
free exercise claim of exemption as made here by Escritor. The compelling state interest
test in Sherbert pushes the limits of religious liberty too far, and so too does the majority
opinion insofar as it grants Escritor immunity to a law of general operation on the ground
of religious liberty. Making a distinction between permissive accommodation and
mandatory accommodation is more critically important in analyzing free exercise
exemption claims. Such limitations force the Court to confront how far it can validly set
the limits of religious liberty under the Free Exercise Clause, rather than presenting the
separation theory and accommodation theory as opposite concepts, and then rejecting
relevant and instructive American jurisprudence (such as the Smith cases) just because it
does not espouse the theory selected.
Florin T. Hilbay, The Establishment Clause: An Anti-Establishment View, 82 PHIL. L.J. 24 (2008).
CONST. art. II, 12 (recognizing the sanctity of family life and equally protect[ing] the life of the
mother and the life of the unborn from conception); art. VI, 28(3) (making tax-exempt churches and all
lands, buildings, and improvements, actually, directly, and exclusively used for religious purposes); art. VI,
29(2) (allowing the payment of public money to a priest, preacher, minister, or dignitary [ ] assigned to the
armed forces, or to any penal institution, or government orphanage or leprosarium); art. XIV, 3(3) (allowing
religion to be taught to children in public elementary and high schools, at the option expressed in writing by
parents).
7 REVISED ADMINISTRATIVE CODE, Book V, Title I, Ch. VI, 46(b)(5).
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THE CONSTITUTIONAL STATUS OF DISBELIEF
581
doctrine being applied to exempt an otherwise adulterous relationship.8 But

if these kinds of relationships are excused from the punitive aspects of
administrative law, one can only wonder about the effects of the new model
on criminal, civil, and perhaps even commercial law. And what other
categories of conduct can now be exempted from general laws because the
actor/s declare what they are doingas opposed to sayingas part of
the exercise of their religious beliefs? One can imagine the lawyers of
organized religions drafting memos for the elders of their various faiths
enumerating atypical and/or presently-illegal practices that can now be
argued as exempt from administrative or criminal scrutiny because they fall
within the ambit of Escritors tolerant embrace. And while specific categories
of religious conduct that could be claimed as exempt from state intervention
or part of free exercise by a specific sect might not necessarily be agreeable
to other sects, the global effect of the decision is to improve every sects
position against both the State and advocates of secularism.
In this Article, I would like to assess the consequences of Escritor by,
first, developing some thoughts on the constitutional status and function of
disbelief in a jurisdiction with a peculiar religious history such as the
Philippines and, second, situating religious belief and disbelief within a more
comprehensive view of what free speech ought to be about from a secular
constitutionalists viewpoint. There is value to be gained in looking at the
opposite side of the spectrumthe side of nonbelieversas it should allow
the observer to look at the whole strand of thought from which segments of
the constitutional debate may be derived. This is most especially true in the
light of the passing, though important, pronouncement of Chief Justice
Puno about the theological status of disbelief or atheism, as he calls it.
There are also practical aspects to the discussion such as the question of
what constitutes a religion for purposes of taking advantage of the Free
Exercise Clause and the exemptions and privileges provided by the
Constitution and related jurisprudence. The other question of interest is
whether atheism is itself a religion both as a constitutional and philosophical
matter.
8 This is perhaps the great paradox of Estrada v. Escritor. The religious themselves, specifically those
fixated with morals legislation, would not be excited with a jurisprudence that allows adulterers a
constitutionalized exemption from the application of administrative, civil, and criminal law. The only
exception here would be the members of the Jehovahs Witnesses themselves. At the same time, the heads of
these religious denominations themselves would be very excited with the prospect of having a constitutional
principle that essentially marks every legislation that incidentally burdens their free exercise as presumptively
invalid.
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BELIEVING
In the rather long discourse leading to the Courts justifying the
adoption of benevolent-neutrality/accommodation (by, among other things,
pointing to certain public practices in the United States that favor religion),
Chief Justice Puno declares: These practices clearly show the preference for
one theological viewpointthe existence of and potential for intervention
by a godover the contrary theological viewpoint of atheism.9
This statement, whether or not it betrays a pastors prejudice,10 is
what one might characterize as pregnant with implications, of the type that
gets cases decided and constructs constitutional policy. What does it mean
to say that atheism is a theological viewpoint? So far as constitutional law is
concerned, what are its doctrinal implications? What Puno most likely
means can be derived from his description of what constitutes theological
(or, to be more precise, theistic) viewpoint, the existence of and potential
for intervention by a god. Belief in a god who dabbles in human affairs
and cares enough to participate (broadly defined) is the hallmark of theology
of the type Puno envisions. This coincides of course with Christianity which
asserts the historical existence of a deity who lived as a human beingsome
say without losing his divine characterfor the purpose of teaching and
saving human beings (more specifically, his Chosen People) from the curse
of the original sin. By this account, atheism would be the lack of belief or,
to use the stronger version, the denial of the existence of a god and, by
implication, his/her/its capacity to interfere in human affairs. How then
can atheism be a theological viewpoint? How can the denial of the existence
of a god be a form of god-belief? Is this but a semantic play or can logic
serve to clarify the basic claims here? For instance, how can disbelief be a
form of belief? Is negation itself an assertion of something other than what
is being negated?
a) Belief.To subscribe to theism, as distinguished from deism,11 is
to assert a menu of beliefs about the attributes of a god that are canonically
taken in constitutional law as protected form of expression under the Free
Exercise Clause. This set of attributes in turn is actually ontological and
Escritor I, at 120.
The Supreme Court biography of Chief Justice Puno, available at
http://sc.judiciary.gov.ph/justices/cj.puno.php (last visited Feb. 15, 2010). The Chief Justice is actively
involved in civic and church activities. He is a lay preacher of the United Methodist Church and the
incumbent Chairman of the Administrative Council of the Puno Memorial United Methodist Church.
11 W.R. Inge, Theism, in 23 PHILO. 38 (1948); Terence Penelhum, Natural Belief and Religious Belief in
Humes Philosophy, 33 PHILO. Q. 166 (1983). See also http://www.theism.info/ and http://www.deism.com/.
9
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epistemological claims usually embedded in the narrative articulated in such

holy texts as the Bible and the Koran. They therefore tell us a lot of
important things about the nature of reality and how we are able to specify
its status as suchwhether human beings evolved or were intelligently
designed; whether the universe was created in seven days and is static or is
expanding as a consequence of the big bang; whether there is free will. They
are important in the sense that, once believed, they form the basis of the
core set of assumptions about human action (agency and, therefore,
morality) and the world (physics and, therefore, objective reality). From
the standpoint of constitutional policy, they assume greater importance
because the canonical status of accounts in holy books means that many,
and some would even say all, of the statements written in them are universal
imperatives to leading the good life and a rewarding eternal afterlife.
Precisely, narratives embed imperatives; stories communicate, directly or
otherwise, standards of action. That they are considered divine or divinely
inspired serves to signal the claim that they are extraordinary in a way that
immunizes them from the critical bite of traditional forms of human inquiry
such as logic, history, or today, science. Thus, accepted as facts of the
religious aspects of ones life would be the existence of the soul or the spirit
world, karma, angels and devils, heaven and hell, the creation story, the
reality of miracles, and the effectiveness of prayers. These are just some of
those religious beliefs that, as such, are broadly protected by the Free
Exercise Clause.
But what does it mean to say that a particular belief is religious and
therefore covered by the Free Exercise Clause? The doctrinal understanding
of free exercise is that which is similar to the negative conception of free
speech, that is, that the government should leave the speaker or, in this case,
the believer, by herself, and let her believe or say what she wishes to express.
Thus, the constitutional norm is respected or guaranteed when the
government does nothing to interfere with the expression. Consistent with
the liberal tradition, the right is recognized when its holder is able to deploy,
as pure speech, what she believes in regardless of cost and the majoritys
opposition. This is well and good, but only if religious beliefs were exercised
in the solitude of ones bedroom and, one might hasten to add given todays
technology, without any internet connection. Many forms of religious belief,
just like political or artistic speech, must be exercised or expressed. In the
ordinary course of things, they are exercised in an environment where either
people are affected (roused or riled, convinced or disgusted) or government
policies (need for neutrality, decision to promote certain symbols, desire to
protect children) are implicated. This is when constitutional policy is made
and battle lines are drawn.
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This comparison of the negative aspects of free speech and free

exercise should highlight an important question that starts with a textual
analysis. Are the Free Speech and Free Exercise Clauses constitutionally
identical? If they are, then why does the constitution separately guarantee
either of these rights? Is there anything to the fact of separate guarantees
that signals to the constitutional interpreter that somehow Free Speech and
Free Exercise cases ought to be treated differently? And how?
One way of resolving these questions is by simply declaring that, to
the extent these clauses have been imposed by the United States during the
colonial regime and therefore only part of those bits of transplanted
doctrinal terms,12 they are non-issues. This point of view becomes more
relevant when we consider that this imposition was done repeatedly13 over a
12 William McKinleys famous Instructions to the Second Philippine Commission, dated Apr. 7, 1900,
reads in part:
At the same time the commission should bear in mind, and the people of the islands
should be made plainly to understand, that there are certain great principles of
government which have been made the basis of our governmental system which we deem
essential to the rule of law and the maintenance of individual freedom, and of which they
have, unfortunately, been denied the experience possessed by us; that there are also
certain practical rules of government which we have found to be essential to the
preservation of these great principles of liberty and law, and that these principles and
these rules of government must be established and maintained in their islands for the sake
of their liberty and happiness, however much they may conflict with the customs or laws
of procedure with which they are familiar.
It is evident that the most enlightened thought of the Philippine Islands fully
appreciates the importance of these principles and rules, and they will inevitably within a
short time command universal assent. Upon every division and branch of the
Government of the Philippines, therefore, must be imposed these inviolable rules:
That no person shall be deprived of life, liberty, or property without due process of
law; that private property shall not be taken for public use without just compensation;
that in all criminal prosecutions the accused shall enjoy the right to a speedy and public
trial, to be informed of the nature and cause of the accusation, to be confronted with the
witnesses against him, to have compulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel for his defense; that excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no
person shall be put twice in jeopardy for the same offense, or be compelled in any
criminal case to be a witness against himself; that the right to be secure against
unreasonable searches and seizures shall not be violated; that neither slavery nor
involuntary servitude shall exist except as a punishment for crime; that no bill of
attainder, or ex-post-facto law shall be passed; that no law shall be passed abridging the
freedom of speech or of the press, or the rights of the people to peaceably assemble and
petition the Government for a redress of grievances; that no law shall be made respecting
an establishment of religion, or prohibiting the free exercise thereof, and that the free
exercise and enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed.
13 The Philippine Bill of 1916, 3(k) (That no law shall be made respecting an establishment of religion
or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed; and no religious test shall be required
for the exercise of civil or political rights. No public money or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
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period of almost half a century and in the name of promoting constitutional

rights, so much so that by the time Filipinos were in a position to draft their
own constitution they could have devised novel doctrinal terms for
themselves. But this might be ascribing too much emphasis on the capacity
or willingness of the framers of the various constitutions to depart from
settled understandings. They could have been focused on other things or
just happy with the way things were doctrinally.14 The second alternative is
to assign to the framers of the various constitutions a certain level of
responsibility in the way these clauses have retained their form, despite the
initial imposition by the United States.
Such way of resolving these issues also dichotomizes ones view of
the extent to which interpreters can manipulate the variance between the
clauses. If we subscribe to the former view that the clauses are identical
simply because they were imposed, interpreters may take this as a cue to
read the clauses separately and impose separate policies into the clauses with
abandon. This could result in a regime where the Free Speech clause is
interpreted in the classic liberal tradition providing the highest level of
freedom to communicate, while the free exercise clause is read in a utilitarian
way, that is, deployed to maximize welfare or promote specifically-identified
causes. On the other hand, we could take the latter view and say that the
identical forms of the two clauses have interpretive implications, that is,
insofar as the drafters of the various constitutions have consciously
maintained the formal identity of these clauses, we can derive the specific
intention to also maintain their substantive identity. This means that those
committed to some notion of fidelity to the framers intentions have a
smaller interpretive space and are thus constrained by both text and history.
b) Exercising Belief.The previous discussion focused on the textual
similarity between Free Speech and Free Exercise clauses. The pure speech
aspect of the clauses is easy enough to deal with, given todays
understanding of freedom of speech. Unless the speechpolitical, religious
institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other
religious teacher or dignitary as such.); CONST. (1935), art. III, 7 (No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.); CONST. (1973), art. IV, 8 (No law shall be
made respecting the establishment of religion, or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without discrimination or preference shall forever be allowed.
No religious test shall be required for the exercise of civil or political rights).
14 If this were the case, then it represents a significant departure from the menu of debatable items
during the Philippine Revolution against Spain. At the center of the revolutionary struggle was not just a
demand for democracy, broadly defined, especially at a time when even western societies were decidedly nondemocratic, but a fight towards a more secular (and thus less theistic) state.
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or otherwiseamounts to a direct incitement to violence or poses a clear

and present danger,15 either of which is a very high standard for allowing the
suppression of content, the government is bound to keep its hands off what
is being said. That the speech is protected means that the constitution acts
as a shield between the information and men of zeal.16 This, of course, is
limited to the traditional case of distributing leaflets, delivering spiels in
public places, and the like. While it may be true that the information is
carried by some medium such as paper, the human voice box, or a
megaphone, the governments interest in regulating leafleting or public
speaking can hardly be justified as implicating some policy directed at papers
or voice boxes. History also shows that State intrusion into these
activities is primarily focused on the information itself and not on
something else.
The rules are different when the information or speech sought to be
disseminated is intertwined with action that affects other people in a way
that is different from the effects of pure speech or when a separately
justifiable government policy is implicated. The paradigmatic example of
the former is hate speech, which is considered in other jurisdictions as
resting on an entirely separate category as political or artistic speech.17
Regardless of whether one agrees with it, the theory is that such form of
speech is proscribable because it is no different from (or perhaps even worse
than) a physical attack or is at least equivalent to direct incitement to
violence. On the other hand, the government is held to a lower standard of
justification when its regulation is aimed at a concern justifiably separate
from speech itself. This is the case with so-called content-neutral
regulation,18 such as in the case of a permit system for the use of public
streets for demonstrations where, at least theoretically, the governments
desire to regulate the streets is considered sufficient to justify an incidental
burden on the right of speakers to express their grievances if they decide to
use the streets as a venue for communicating. Needless to state, no person
Brandenburg v. Ohio, 295 U.S. 444 (1969); Reyes v. Bagatsing, 210 Phil. 457 (1983).
Justice Brandeis famously remarked in Olmstead v. U.S., 277 U.S. 438 (1928)The greatest dangers
to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.
17 The theory is that certain forms of speech are simply untrue (denying the Holocaust), undermine the
states attempt at developing a community (homophobic slander), and susceptible to producing violence
(racist or anti-religious speech) that society is better off proscribing them.
18 The paradigmatic example is the case of U.S. v. O-brien, 391 U.S. 367 (1968), adopting the test named
after the private petitioner. The Court held, at 377, that a government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that
interest. See also Social Weather Stations, Inc. V. Commission on Elections, G.R. No. 147571, May 5, 2001.
15
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can inflict physical harm on another person as a form of symbolic speech

and then seek constitutional protection for the criminal consequences of his
act.
Cases involving the exercise of ones religion, when argued to be
constitutionally free, are qualitatively different from speech complicated
by action. The peculiar nature of free exercise claims is precisely that they
are aimed to act as a specific immunity or exemption from regulation on the
simple ground that the act sought to be immunized or exempted is
intertwined with the exercise of ones religious beliefs. The practical
consequence of the claim, if sustained, is to create a double standard
whereby the entire population minus the successful free exercise claimants is
subjected to the effects of a (presumably rational) statute. The irony should
be quite evident: statutes that undergo a tedious process of rationalization
and articulation end up not holding ground against non-rational beliefs.
This situation is a major departure from free speech jurisprudence
which makes a bright line distinction between pure speech and speech
coupled with action. The general rule, as may be gathered from the socalled red scare cases19 is this: you can talk all you want, but once your
advocacy of ideas turn into advocacy to action, when you (literally) start
walking your talk, the government can step in and use its resources to stop
and punish people. This ensures that the marketplace of ideas is, given
certain other conditions, free from the hands of government, while the
marketplace of actions is a state-policed environment. This is a rational
compromise that maximizes speakers liberty and listeners autonomy,
essentially allowing buyers and sellers of ideas the right to define the rational
and the good.
Free exercise claims, on the other hand, are different because the
immunity or exemption sought raises equality concerns of the rather bizarre
type. In the case of a citizen seeking exemption from the application of a
statute, disagreement with the law, however rational or well-grounded, is
rarely a good argument for non-compliance. Here the basic rule is dura lex,
sed lex or, in the language of constitutional law, unless the constitution
constrains the majority, it can impose its will on minorities, marginal
speakers, and dissenters through the normal processes of democracy. But in
the case of the free exercise claimant, her exemption need not be grounded
on disagreement with the statute, as she may even, at least in principle, be
19 Schenk v. U.S., 249 U.S. 47 (1919); Abrams v. U.S., 250 U.S. 616 (1919); Whitney v. California, 274
U.S. 357 (1927).
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unopposed or morally neutral to it. Her argument for exemption is either

that her religion stands in the way of her complying with the statute or that
compliance with her religion makes her believe that the law is incompatible
with the tenets of her faith which, incidentally, is further claimed to assume
primacy over law and pretty much everything else. In the case of Escritor,
the constitutional exemption is even more potent because even when ones
religion simply allows the believer to engage in some otherwise illegal
activity (as opposed to requires her to act in one way and not the other)
the Court has in effect sanctioned the use of religion as a trump card for
permissible acts that conflict with general statutes. The analysis of general
statements can be sharpened by the major cases the Escritor majority used as
fodder for discussion.
SHERBERT V. VERNER20
Adell Sherbert was a member of the Seventh-day Adventist Church.
Discharged by her employer because she would not work on Saturdays, the
Sabbath Day of her faith, and unable to obtain other employment, she
decided to file a claim for unemployment compensation which was denied
on the ground that she had failed, without good cause, to accept available
suitable work. She then brought suit on First Amendment grounds, arguing
that the denial of unemployment compensation was a violation of her right
to freely exercise her religion.
The U.S. Supreme Court agreed with her. The Court introduced its
analysis by adopting a test which essentially rejected a rational basis standard
and instead placed a high burden of justification for the State to overcome.
It held that if the decision of the [lower court] is to withstand [ ]
constitutional challenge, it must be either because her disqualification as a
beneficiary represents no infringement by the State of her constitutional
rights of free exercise, or because any incidental burden on the free exercise
of appellants religion may be justified by a compelling state interest in the
regulation of the subject within the States constitutional power to
regulate.21 According to the Court, the impediment to Sherberts free
exercise is apparent: the decision of the unemployment commission forces
her to choose between following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of the precepts of her
religion in order to accept work, on the other hand.22 The Court declared
374 U.S. 398 (1963).

Id. at 403.
22 Id. at 404.
20
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589
the burden as no different from a fine imposed on the believer for her
Saturday worship.23 It then held insufficient for purposes of complying with
the compelling interest standard the mere possibility of fraudulent claims by
those feigning conscientious objection.24 The Courts analysis was then
followed by a set of disclaimers: (a) the extension of unemployment benefits
to Sabbatarians in common with Sunday worshippers reflects nothing more
than the governmental obligation of neutrality in the face of religious
differences; (b) the recognition of the right to unemployment benefits in this
case does not serve to abridge any other persons religious liberties; (c) the
decision does not declare the existence of a constitutional right to
unemployment benefits on the part of all persons whose religious
convictions are the cause of their unemployment; and (d) nothing in the
judgment constrains the States from adopting any particular form or scheme
of unemployment compensation.25 As correctly pointed out in Escritor, this
decision signaled a transition from the view that inadvertent or incidental
interferences with religion raised no problem under the Free Exercise Clause
to one where such interferences violated it in the absence of a compelling
state interestthe highest level of constitutional scrutiny short of a holding
of a per se violation.26
The Sherbert decision is a classic example of the policy of
accommodation of the type the Escritor court would approve. On the
surface, it is also apparently progressive, given that the facts of Adell
Sherberts case seem to call only for a mild form of exemption that will cost
the State a non-significant amount. Just as important, there is an
undercurrent of equality argument against the overwhelming (nonSabbatarian) Christian population of the State who can be said to be
systemically accommodated by the economy that generally slows down on
Sundays.
Id.
Id. The appellees suggest no more than a possibility that the filing of fraudulent claims by
unscrupulous claimants feigning religious objections to Saturday work might not only dilute the
unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work.
But that possibility is not apposite here because no such objection appears to have been made before the
South Carolina Supreme Court, and we are unwilling to assess the importance of an asserted state interest
without the views of the state court. Nor, if the contention had been made below, would the record appear to
sustain it; there is no proof whatever to warrant such fears of malingering or deceit as those which the
respondents now advance. Even if consideration of such evidence is not foreclosed by the prohibition against
judicial inquiry into the truth or falsity of religious beliefsa question as to which we intimate no view since it
is not before usit is highly doubtful whether such evidence would be sufficient to warrant a substantial
infringement of religious liberties. For even if the possibility of spurious claims did threaten to dilute the fund
and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no
alternative forms of regulation would combat such abuses without infringing First Amendment rights.
(citation omitted).
25 Id. at 409.
26 Escritor I, at 98.
23
24
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Nonetheless, the peculiarity of having a system of precedents is

precisely that principles crafted for a particular set of facts become policy for
future cases of similar nature. And even if judges and lawyers can make fine
distinctions based on factual disparities or parse the language of doctrine to
distinguish one set of facts from another, the courts adoption of a doctrine
becomes a default rule or principle departure from which requires a
justification. The important questions, therefore, are: (a) could the Sherbert
majority have crafted a narrower doctrine that does not make statutes of
general applicability presumptively invalid when faced with a claim for
exemption? And (b) were there other ways of justifying the decision without
adopting the compelling interest standard? Finally, is any form of
accommodation for Sherbert bound to create larger expectations?
Keep in mind that what Sherbert refused was work on Saturdays.27
This is crucial because refusal to work on Saturdays does not make Sherbert
unavailable for many of the jobs available in the labor market which
presumably requires a Monday through Friday engagement. One can say
therefore that the consequence of refusing Saturday work is not so much
that Sherbert becomes technically incapacitated for a larger menu of possible
employment, constricting her choices to such a point where she literally
becomes invisible to the labor market, but only that she doesnt get certain
jobs that require her to work on Saturdays. One may go so far as to say that
Sherbert stands no differently from the position of a person who wants to
visit his parents on Saturdays (the only day when the entire family is
available for get-togethers) or regularly plays basketball with high school
classmates, and thus would not accept Saturday jobs. It is quite doubtful
whether, in these cases, the unemployed could make a claim that they have
the right of privacy to make these kinds of life choices without any cost or
with the government bearing the cost of such choices.
Ultimately, the question in Sherbert is one of costwho is to bear
the financial burden of making a religiously-informed choice not to work on
Saturdays? This approach takes the constitutional question from a different
angle that the Sherbert court took and which focused more on the question
of whether the Free Exercise Clause allows the State to place what it called an
incidental burden on the free exercise rights of the believer. Preliminarily,
one should not lose sight of the Courts strategy of collapsing the beliefaction distinction. Sherberts claim is not that the State is getting in the way
27 Sherbert, 374 U.S. at 399. Appellant became a member of Seventh-day Adventist Church in 1957, at
a time when her employer, a textile-mill operator, permitted her to work a five-day week. It was not until
1959 that the work week was changed to six days, including Saturday, for all three shifts in the employers
mill.
2010]
591
of her subscribing to the doctrines of her faith; it is that the State is

unwilling to pay for the cost of her acting upon her belief that Saturday
cannot be a day of work. And because the Court considered Sherberts not
being able to obtain unemployment compensation a burden equivalent to a
fine, it became (at least for the Court) rhetorically easier to unburden
Sherbert. Notice, however, that the act of unburdening Sherbert is not
without cost. Put plainly, the effect of the decision is to shift the burden
from the believer to the State. This is the policy choice. Why should the
State bear the burden for Seventh-day Adventists not working on Saturdays
and let other private citizens shoulder the costs of a work-free Saturday?
The Sherbert Court wrongly casts the issue when it speaks of an
obligation of neutrality in the face of religious differences and decides the
case as if it were an affirmative action in favor of Sabbatarians in order to
somewhat equalize their position with other Christians who are able to rest
on Sundays. It may be true that most Christians get a free pass because the
market is generally favorable to work-free Sundays, but their belief does not
require total refusal to engage in secular activities. The practices of these
Christians, therefore, do not result in conflict with the aims of a secular
society. The conflict arises precisely because Sabbatarians claim that their
decision to rest on Saturdays should be cost-free on their part and a financial
burden for the government. The Sherbert Courts assertion of neutrality
can in fact be easily flipped: instead of looking at the unemployment
commissions decision to deny Sherbert benefits as a form of a fine for
believing in a particular form of god-belief, we could very well look at the
Sherbert Courts decision as a form of endorsement, that is, a financial
reward that makes it more convenient for Sherbert to believe what she
believes in, however irrational it may be. The concept of a reward is in fact
quite apt in the case of Adell Sherbert precisely because it is not as if the
labor market does not provide for jobs that would allow her to work
anywhere between Sunday and Friday.
Problems of operationalization arose when the Sherbert court
rejected the existence of a constitutional right to unemployment benefits on
the part of all persons whose religious convictions are the cause of their
employment. Given that the Court did recognize exactly a species of that
right with respect to Adell Sherbert, one is at a loss as to how other
claimants may successfully prove a claim for exemption and how the
government can justify a compelling state interest. Suppose Seventh-day
Adventists had Wednesdays for their day of rest? If this had been the case,
would the constitutional claim for exemption be weaker or stronger? Would
it be weaker because Wednesdays, unlike Saturdays, fall right smack in the
592
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middle of work week and thus the prospect of Sabbatarians earning

unemployment compensation for refusing to work on Wednesdays, when
almost everyone else is working, is very difficult to justify? Or is it stronger
because believers who demand unemployment compensation for not
working on Saturdays are even rarer, which means that their minority status
is even more highlighted and their impact on unemployment compensation
funds is less than other marginal believers?
EMPLOYMENT DIVISION V. SMITH28
It is possible to say that the claim for exemption argued for by
members of the Native American Church in Smith is simply the logical
consequence of the successful claim for exemption in Sherbert. After all,
once the Supreme Court opened the door to exemptions such as the one
successfully made in Sherbert, it was not very difficult to foresee a slippery
slope in which only the Court is able to dictate the steepness of the slide.
Considering further the nature of religious claims for exemptions, one could
very well say goodbye to any rational standard for determining which claims
for exemption stand on better footing than the others. Smith is a shining
exemplar of the difficulties in navigating a rational compromise in irrational
waters.
Alfred Smith and Galen Black were fired from their jobs
with a private drug rehabilitation organization because they ingested peyote
for sacramental purposes at a ceremony of the Native American Church, of
which both were members.29 They sought unemployment compensation
from the Employment Division, Department of Human Resources of
Oregon, but their claims were denied on the ground that they were
discharged for work-related misconduct.30 Citing the courts prior
decisions31 Smith and Black argued that the State could not condition the
availability of unemployment insurance on an individuals willingness to
forego conduct required by his religion.
It is interesting that the Court opened its analysis by mildly adverting
to the belief-action distinction the Sherbert court dropped by implication,
noting that the exercise of religion often involves not only belief and
profession but the performance of (or abstention from) physical acts such as
494 U.S. 872 (1990).

Id. at 874.
30 Id.
31 Sherbert, 374 U.S. at 403; Thomas v. Review Board of Indiana Employment Security Division;
Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987).
28
29
2010]
593
assembling with others for a worship service, participating in sacramental

use of bread and wine, proselytizing, abstaining from certain foods or certain
modes of transportation.32 The purpose of the Court, however, was not to
reintroduce a bright line distinction between operations of the mind and of
the body, but subtly introduce an animus requirement that focuses on the
intention of the legislature in passing a law that incidentally burdens religious
freedom.33 This is why the Court saw the claim for exemption by Smith and
Black as a contention that their religious motivation for using peyote places
them beyond the reach of a criminal law that is not specifically directed at
their religious practice, and that is concededly constitutional as applied to
those who use the drug for other reasons.34
The larger purpose of the reframing the argument for exemption
allowed the Court to reject the claim on grounds of neutrality. A law, to
be considered neutral, must be of general applicability and it should suffice
that it does not suffer from the vice of having been passed specifically to
prejudice a religious group. This definition permitted the Court to declare it
had never held that an individuals religious beliefs excused him from
compliance with an otherwise valid law prohibiting conduct that the State
was free to regulate.35 Because the commands of religions are not superior
to the law of the land,36 the right of free exercise does not relieve an
individual of the obligation to comply with a valid and neutral law of
general applicability on the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes).37
The reality is that Smith is a bad case to win for those who reject the
existence of the right to an exemption from general laws on religious
grounds. For one, it is very easy to see this case within the context of the
long history of discrimination and marginalization of native Americansjust
an extension of Western arrogance or a form of legalized violence against
native cultures. For another, the wisdom of criminalizing peyote (instead of,
say, just regulating its use) is even more suspect than the criminalization of
marijuana. The argument can be made that it is not inconsistent with
secularism to distinguish between religious and non-religious use of peyote
Smith, 494 U.S. 872.
And so the Court declares: It would be true, we think (though no case of ours has involved the
point), that a State would be prohibiting the free exercise [or religion] if it sought to ban such acts or
abstentions only when they are engaged in [it] for religious reasons, or only because of the religious belief that
they display. It would doubtless be unconstitutional, for example, to ban the casting of statues that are to be
used for worship purposes, or to prohibit bowing down before a golden calf. Id. at 877-78.
34 Id. at 878.
35 Id. at 878-79.
36 Id.
37 Id.
32
33
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because its psychoactive effects are required to attain certain chemical states
essential to the claimed spiritual experience of the believer. This experience,
especially because it is part of a tradition, can have an independent cultural
value that a secular society might wish to tolerate. Non-religious users of
peyote and all marijuana smokers, on the other hand, are only interested in
getting a fix. While this may not in itself furnish a justification for
criminalization in a liberal society, it might furnish a rational distinction for
treating religious users differently from pleasure seekers, even if only
because those who use prohibited substances purely for pleasure might be
more susceptible to committing other acts that the legislature might wish to
protect the general population from. One can therefore conclude that the
problem in Smith should have been handled at the level of statutes, instead
of the Constitution.
Notwithstanding the problematic factual situation in Smith, certain
abstract principles may be derived which should prove essential to building a
secular rule of law: first, the primacy of human law over non-human law. It
is central to a regime of law to recognize the important assumption that in a
modern constitutional liberal democracy, the law of human beings takes
precedence over any supposed natural and/or divine law. Privileging human
law should of course not be treated as an endorsement of dogmatic
positivism. What is meant simply is that when it comes to legal discourse,
the items on the menu should be limited to rules, processes, and principles
that rational human beings can access, as opposed to unadulterated
reference to ones holy book or the command of some high priest.
Second, the rejection of the use of compelling government interest
in religious exemption cases on the ground that its application in the context
of claims for exemption produces a constitutional anomaly.38 The court
made a crucial distinction between, on the one hand, free speech and equal
protection cases, and, on the other, religious exemption cases. While it did
not provide any reason why, one can assume it had something to do with
ensuring the primacy of human law or non-human law. Why should society
justify post-facto the existence of a general secular law that happens to
incidentally burden ones practice of religion? Regulations that target the
content of ones speech or focus on a special class must comply with a
higher standard of justification because modern societies have come to
understand the transcendent value of promoting the marketplace of ideas
and laws that create suspect classifications undermine the principle of equal
citizenship. But in societies that adopt the separation of Church and State as
38
Smith, 494 U.S. at 1604.
2010]
595
an organizing principle, it is hard to justify why the State should bend over
backwards and is made to adopt a high burden of justification to
accommodate (in this case, fund) religious practices.39
c) The Escritor Paradigm.Because the Escritor majority focused on
the two preceding cases, endorsing Sherbert40 (for providing significantly
increased degree of protection to religiously motivated conduct)41 and
criticizing Smith42 (as a perversion of precedent),43 it is very important to
distinguish the factual scenarios in the three cases from the perspective of
Escritor.
Both Smith and Sherbert were decided along the line of claims for
exemption from general statutes in order for the claimants to obtain
unemployment compensation which, in their nature, is a temporary welfare
grant from the State. Escritor, on the other hand, involved a claim for
immunity from the morality provisions of the civil service law which
constitute a continuing qualification for holding public office in the
Philippines. At some level, all three cases involved assertions of immunity
of a permanent character for all those similarly situatedthose who cannot
work on Saturdays for religious reasons and unable to find a job because of
it; those who smoke peyote for religious reasons even if they work in drug
rehabilitation centers; and those who enter into adulterous relationships.
Escritors claim, however, is qualitatively different because, whereas Smith
39 As pointed out by the majority, it is even more difficult to operationalize: [Society] cannot afford the
luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that
does not protect an interest of the highest order. The rule respondents favor would open the prospect of
constitutionally required religious exemptions from civic obligations of almost every conceivable kind
ranging from compulsory military service, to the payment of taxes; to health and safety regulation such as
manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare
legislation such as minimum wage laws, child labor laws, environmental protection laws, and laws providing
for equality of opportunity for the races. Id. at 1605-1606 (citations omitted).
40 The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in
the case of Sherbert v. Verner, which ruled the state regulation that indirectly restrains or punishes religious
belief or conduct must be subjected to strict scrutiny under the Free Exercise Clause. (citation omitted)
Escritor II, at 43.
41 Escritor II, at 48.
42 The Smith doctrine is highly unsatisfactory in several respects and has been criticized a exhibiting a
shallow understanding of free exercise jurisprudence. First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority. Critics of Smith have worried about
religious minorities, who can suffer disproportionately from laws that enact majoritarian mores. Second,
Smith leaves too much leeway for pervasive welfare-state regulation to burden religion while satisfying
neutrality. After all, laws aimed at religion can hinder observance just as effectively as those that target
religion. Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be
allowed to interfere with the most deeply held fundamental religious convictions of an individual in order to
pursue some trivial state economic or bureaucratic objective. This is especially true when there are alternative
approaches for the state to effectively pursue its objective without serious inadvertent impact on religion.
(citation omitted) Id. 53-54.
43 Id. at 56.
596
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and Sherbert involved acts that are performed under religious compulsion,
Escritor was about a non-optional relationship or an engagement that was,
pursuant to the beliefs of Escritors faith, simply permitted or allowed.
This distinction matters a lot for doctrine because there is a very
wide disparity between acts of god-believers that are only permissive or
allowed by the doctrines of their faith and those that are mandatory or
required in order to become a compliant believer. To further help the
analysis, we can create a box composed of zones of convergence and
divergence between the secular and the sectarian. The first (upper left) is the
zone of convergence between the secular and sectarian in the sense that here
we can find the universe of acts that are allowed both by secular and
sectarian laws. Usual examples of these acts are getting married, having
children, acquiring property, etc. This poses no problem for either
community. The second (upper right) is another zone of convergence,
where we find the universe of acts that are mandatory under both secular
and sectarian regimes. General examples of these would be the prohibitions
against committing murder and theft. This also poses no problem. The
third (lower left) is a zone of divergence, where we find the universe of acts
that are allowed by sectarian laws but are prohibited by the secular regime.
This is the Escritor zone of divergence. In the fourth (lower right) is another
zone of divergence, were we find the universe of acts that are prohibited by
sectarian laws but allowed by the secular regime. This is the Sherbert zone of
divergence. In the fifth (lowest left) is another zone of divergence, where
we find the universe of acts required by the secular regime but prohibited by
sectarian law. This is the Minersville School District v. Gobitis,44 West Virginia v.
Barnette,45 Ebralinag v. The Division Superintendent of School46 and Victoriano v.
Elizalde Rope Workers Union47 zone of divergence. In the sixth (lowest right)
is another zone of divergence, where we find the universe of acts prohibited
by secular law, but required by sectarian law. This is the Wisconsin v. Yoder48
zone of divergence.
44 310 U.S. 586 (1940). (Involving compulsory flag salute and recitation of the pledge of allegiance in
American public schools).
45 319 U.S. 624 (1943). (Reversing Minersville).
46 219 SCRA 256 (1993). (Exempting the Jehovahs Witnesses from compulsory flag salute in Philippine
public schools.)
47 59 SCRA 54 (1974). (Exempting members of the Iglesia Ni Kristo from the application of the closed
shop agreement).
48 406 U.S. 205 (1972). (Exempting children of Amish parents from compulsory education beyond the
8th grade).
2010]
597
Allowed by Law, Allowed by

Religion = Zone of Convergence
Prohibited/Required Law,
Prohibited/Required by Religion =
Zone of Convergence
Allowed by Religion, Prohibited by

Law = Escritor Zone of
Divergence
Prohibited by Religion, Allowed by

Law = Sherbert Zone of Divergence
Prohibited by Religion, Required by

Law = Ebralinag Zone of
Divergence
Prohibited by Law, Required by

Religion = Yoder Zone of
Divergence
Here we see that the decision in Escritor furnishes the strongest

possible form of immunity for religious practices, even if only because in the
Escritor zone of divergence will be found the universe of activities that are
not doctrinally required for maintaining or qualifying for a particular faith
but nonetheless a source of exemption from general, and even criminal,
statutes. In cases where a particular act is simultaneously prohibited by
religion and required by law, as in the flag salute cases, the
incommensurability between religious belief and secular demands is very
high given that acts prohibited by religion usually constitute a ticket to hell
and those required by law are generally backed by a powerful sanction that
could land the violator a trip to prison. In the flag salute cases, for example,
the choice given to the believer is between saluting an idol and being
expelled from school. These are very difficult choices to make, especially if
the fight is actually one between parents and the State, with children in the
middle. The same thing is true in those instances involving acts that are, at
once, prohibited by law and required by religion. Just as in the flag salute
cases, the believer is pinned to a zero-sum game between the State and the
Church.
The Yoder case is also a battle for the life choices of the child. In
fact, the only difference between the Ebralinag zone of divergence and the
Yoder zone of divergence is the position of the State and the Church in
either case. Because the demands of religion and law in either zone are very
high, there is very little room for compromise on the part of the Court
deciding the issue, in which case the choice made becomes even more
susceptible than the normal case to the charge of having been politicized.
In contrast, factual situations covered by the Escritor and Sherbert
zones of divergence should not, at least in theory, present a situation as dire
as in the Ebralinag and Yoder zones of divergence. This is because in either
case, religion or law plays only the part of an enabler, which in turn allows
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the prohibitor to take the upper hand and be followed by the

citizen/believer. In the normal course of things, Escritor would have
chosen not to enter into an adulterous relationship given the reality that
while it is permitted by her religion, it is nevertheless a violation of a
criminal statute. In this case, the citizen/believer is subjected to a test of
incentives or disincentives. Thus, the rational decision is for her to follow
the command of the prohibitor. With respect to Sherbert, the rational
decisionto follow the dictates of her faith where the law has given her the
optionis also dictated by the fact that her religion has claimed greater
stake to meaning than the State in the matter involving the decision to work
on Saturdays. Why is it then that cases of the Escritor and Sherbert type are
just as, if not even more, controversial than those falling within the other
zones of divergence?
The answer lies in the fact that, in reality, every zone of divergence
is a highly contested space where both Free Speech and Non-establishment
clauses are in operation, with highly mobile demarcation of doctrinal lines.
For instance, in Sherbert, we should not have anticipated any problem
because the State has no problem with Sabbatarians refusing to work on
Saturdays. To be sure, this is a zone of minimal divergence considering that
the interests of the State and of the religious denomination involved are not
really in direct conflictthe citizen/believer is not pressed against the wall.
The situation becomes highly charged when Sabbatarians argue that they not
only have the right to freely exercise their religion by not working on
Saturdays but also, and more important, that the cost of their choice be
shouldered by the State. This creates a situation of conflict because the
citizen/believer not only wants a pass but a free lunch as well. Those who
agree with the decision argue that exercise of religion is free when the
economic burden is shifted to the State, while those who disagree argue that
the transfer of burden to the State would amount to an establishment as the
constitution does not mandate that religious choices be cost-freemuch
less, cost-beneficialon the part of the god-believer. Viewed this way,
Sherbert is a free exercise case not from the standpoint of a negative right but
from the standpoint of a positive right in which the government, in addition
to being required to respect the exercise of the right by not standing in the
way, is also made to perform an affirmative act to support its exercise.
But let us assume that the Sherbert decision was defensible because
the choice of the god-believer to not work on Saturdays is religiously
compelled and thus a matter over which the follower has very little
discretion. How do we now justify the decision in Escritor? For one, that
the Jehovahs Witnesses allow Soledad to engage in an otherwise adulterous
2010]
599
relationship doesnt really help. Sure, the elders certification might mean
her god would tolerate her relationship with Quilapio, but the only effect of
that certification is the congregations assurance that she wont be punished
by god even if the Department of Justice of the Republic of the Philippines
would. More important, that her conduct is excused by the leaders of her
faith only means she is free to do as she pleases without having to worry
about any form of punishment in the here and now or in any supposed
afterlife. That is it and nothing more. The doctrine of her faith is thus
neutral with respect to human laws against adultery. Furthermore, this
certification is in the form of an immunity which means, in Hohfeldian
fashion, that the choice is lodged in her. This effectively eliminates a
Sherbert-type of a defense.
A further implication of the fact that Soledads choice on this matter
is not religiously compelled has something to do with the centrality
argument that has become a part of debates for exemption which the U.S.
Supreme Court has veered away from,49 but which, surprisingly, the Escritor
majority has embraced.50 With this dangerous venture into the question of
whether a particular belief claimed to be exempt from regulation is central to
the believers faith, the Supreme Court has included the element of
proportionality into its decision-making in the area of religious freedom. In
general, the rule is that beliefs that are central to a particular faith are, at least
in comparison with those that are not, entitled to a higher degree of
consideration (not necessarily respect) given that the sensitivity of the issue
is directly related to the importance of a specific practice to the belief
system. While it does make sense to measure the value of the practice from
the perspective of the belief system in question, it also entangles the courts
in the rather messy affair of weighing the value of the affairs of the
faithful.51 In the case of Escritor, the Court could have safely engaged in this
affair of considering the nature of the act involvedadultery. It is really a
testament to the astounding lack of imagination of the Solicitor General in
49 Smith, 494 U.S. at 886-887. Nor is it possible to limit the impact of respondents proposal by
requiring a compelling state interest only when the conduct prohibited is central to the individuals religion.
It is no more appropriate for judges to determine the centrality of religious beliefs before applying a
compelling interest test in the free exercise field, than it would be for them to determine the importance of
ideas before applying the compelling interest test in the free speech field. What principle of law or logic can
be brought to bear to contradict a believers assertion that a particular act is central to his personal faith?
50 The dispositive of Escritor I, at 191 stated: IN VIEW WHEREOF, the case is REMANDED to the
Office of the Court Administrator. The Solicitor General is ordered to intervene in the case where it will be
given the opportunity (a) to examine the sincerity and centrality of respondents claimed religious belief and
practice.
51 One can imagine that even among the various sub-sects of the many religious that thrive today,
religious leadersand even their practitionerswould find it difficult to fully agree on a set of central claims
of their belief system. It also goes without saying that these sects cannot simply argue that all matters related
to their faith are central and thus protected.
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this case when it simply conceded the centrality of the practice as beyond
serious doubt.52
What precisely is the relationship between committing adultery and
becoming a good and compliant Jehovahs Witness? It is not a matter of
debate that being an adulterer is not a requirement of the Jehovahs
Witnesses. Nor it is required, as a ticket to heaven, that all the faithful
execute a Declaration Pledging Faithfulness; the document is but an
evidence that a member who is disqualified from entering into a specific
form of relationship under the laws of a legal jurisdiction has done her best
to comply and that this best effort attempt is good enough in the eyes of
their deity. The purpose, as stated in Soledads affidavit itself, is merely to
seek Gods approvalit is to establish as a fact of the Witnesses religious
life that certain types of adulterous relationships may be permitted. To be
more precise, the best that can be said about the issue of centrality is that a
marriage that is valid in the eyes of the Witnesses deity is what is central or
important to the life of a Witness. But this can be said of most other
Christians as well, as marriage is an important sacrament. To be unified in
the eyes of god is so central to Christian dogma that those who live
together without the benefit of marriage are considered living in sin. But
this only means that those who wish to live together in a committed
relationship must get married, not that marriage is mandatory for everyone.
In the case of the Witnesses, that adulterous marriages are in some cases
allowed by their faith is certainly not equivalent to the claim that entering
into adulterous marriages is central to their religious dogma.
The Escritor paradigm allows exemptions from laws of general
application in such a comprehensive manner one wonders whether the
majority was able to foresee the consequences of what it was doing, as the
new model empowers religious outfits to potentially claim exemption from a
vast swath of legislation of general application. Considering that Escritor
establishes an exemption from the effects of adultery as a threshold, it is
really not farfetched to imagine that in the future, assuming the Supreme
Court can remain true to the bar it has set, multiple challenges will be made
to civil and criminal legislation in the form of a constitutionalized demand
for immunity purely on religious grounds.
52
Escritor II, at 81.
2010]
601
SPEAKING AND (DIS)-BELIEVING

The previous section mapped out the discourse that constitutes the
jurisprudence related to the concept of believing, which platform we can use
for reflecting on the constitutional status of disbelief. What we can gather
from this rhetorical environment is that the courts, especially the Philippine
Supreme Court, have distinctly separated the concept of speaking embodied
in the Free Speech Clause and of believing contained in the Free Exercise
Clause. This separation has essentially allowed the Supreme Court to
somewhat create a hierarchy among rights with preferred status. The
constitutional status of believing, as per Escritors momentous implication, is
specially preferred, which means that the right to believe not only involves
the negative freedom to be left alone in the way a person subscribes to her
faith but also the positive freedom to act pursuant to ones beliefs and either
be immune from regulation or entitled to support from the State to ensure
that the exercise of ones faith is cost-free. With benevolent-neutrality,
believing in the irrational, the fantastic, and the mythical has become even
more protected than speaking, whether rationally or otherwise.
What about disbelief? If, as Puno declares, atheism is a contrary
theological viewpoint, should atheists celebrate and take advantage of the
Chief Justices conceptual misapprehension? To be sure, to embrace
atheism as a religion has its benefits, not the least of which would be the
possibility of freeriding on Escritor-esque exemptions. There are a host of
criminal and anti-social practices an astute builder of the Church of Atheism
could concoct with this strategy. One particular freethinker thought it wise
to use such strategyfor benign reasonsto set up an inmate study group
focusing on humanism, atheism, and free speaking.53 Such particular
instrumentalism, however, has its larger implications. Atheism, following
this view, and consistent with Punos remarks about the subject, is a
theology. Given that it is a form of god-belief, it is entitled to all those
constitutionalized
perks
the
paradigm
of
benevolentneutrality/accommodation has since created. This is, of course, beneficial
but at what level and cost?
Nonbelievers should take a second look at the benign
instrumentalism of the freethinker who wishes to learn in the restricted halls
of the prison library. True, obtaining the books would help him advance his
knowledge, a matter truly central (if there ever was one) to the concerns of
nonbelievers. But the constitutional principle is erroneous and not cost-free.
53
Kaufman v. McCaughtry, 419 F3d 678, Aug. 19, 2005.
602
[VOL 84
For starters, atheismor more precisely, disbelief or post-theism or nontheismis not a religion to the extent that it does not involve the belief in a
theos or a deity, whether of the type that interferes in human affairs or not.54
Those who do not (but should) know better equate disbelief with
scientism or the deification of science as a replacement for a god.
Whether this is only propaganda or a sincerely held opinion is difficult to
ascertain. But one does not need to have a scientific mindset to not believe,
even if it immensely helps in debating god-believers. For some philosophers
and those given to critical thinking, religious dogma is for the most part
already self-contradictory, if not downright false. The scientific evidence for
evolution and other matters sensitive to the religious are just a bonus. Most
certainly as well, the god of science is incapable of unleashing the plague
or ordering physicists to sacrifice their children in the tradition of Moses
blind commitment.
For another, taking advantage of the constitutional exemptions of
religions for the benefit of nonbelievers amounts to a rather distasteful
recognition. To accord religious practices that are today constitutionally
exempt the status of equality with non-theistic views is nothing less than
cynical pragmatism. Worse, it grants recognition and legitimacy to the very
practices secularists worry about. To say that atheism should embrace the
Chief Justices inappropriate tag is to accept as unproblematic the very
concept of constitutionalized exemptions for religious practices. From the
point of constitutional principle, it is the very idea of exemption from
general statutes of practices that are religiously motivated that is worrisome.
Finally, insofar as non-theistic practices are concerned, it is really impossible
to identify any set of practices that might conceivably be thought of as
central to non-theistic beliefs which require any special protection beyond
the same protections accorded to the freedom to speak, to inquire, and to
criticize.
TOWARDS CONCEPTUAL SYMMETRY
BETWEEN BELIEF AND DISBELIEF
How then should we evaluate the constitutional status of belief and
disbelief? And what tests should be used to weigh claims of incidental
burdens to belief or non/dis-belief? Are there any existing laws that can
serve as examples to stress test the model? What are the justifications for
adopting this new model? What are its advantages over benevolent
neutrality/accommodation paradigm?
54
Richard Dawkins, THE GOD DELUSION (2006).
2010]
603
As a preliminary matter, the principle of separation of Church and

State in the Constitution requires that the Supreme Court adopt principles of
interpretation and doctrines that are rationally sustainable and defensible
given the concern over sectarianism in Philippine history and the enmeshed
problem of a shrinking space for public reason coupled with the difficulty of
promoting secular policies. Without a doubt, the Supreme Courts attitude
towards religion is a powerful signal for legitimizing religious practices that
go against either the demands of communitarianism (certain religious
practices make use of rights precisely to reject majoritarian norms) or of
equal citizenship (exemption is, by nature, selective). At the same time, it
creates an incentive mechanism that drives the action of religious institutions
and serves as a standard for individual activities that implicates rules at the
level of the public.
The model proposed here does not require sophisticated
justification or a strained reading of constitutional principles. Indeed, all
that is needed is to simplify the paradigm that has been obscured by theories
which only serve to justify counter-secularist principles. The goal of the
model is to rationalize the way Free Speech and Free Exercise clauses are
used in relation to the activities of believing and disbelieving. The practical
effect of the model is to create some symmetry between belief and disbelief
in such a way that these activities become equivalent in the eyes of the
Constitution. The general features of this model are as follows
First, the negative guaranty of symmetry between the right to speak
and the right to believe or not believe. The right to believe or not believe
should be seen as constitutionally coextensive with the right to speak. This
means that any attempt to regulate the content of belief should be subjected
to the same tests available for content-based regulation.
Second, the guarantee of free exercise of religion (or of disbelief) is an
assurance against government regulation targeting religious practices on the
sole ground that they are emanations of the right to believe (or not believe).
In those instances where regulation is directed not at the content of speech
but at a justifiably secular concern, the fact of incidental burden to free
exercise should not result in the presumptive invalidity of the statute.
Instead, such regulation should be scrutinized following the Obrien
standard for content-neutral regulation.
Applying this symmetrical model for Free Speech and Free Exercise
to the case against Soledad Escritor, a court can view the Declaration
Pledging Faithfulness as a form of pure speech or even a private matter
604
[VOL 84
between her and her congregation (or even her god). But the declaration
carries no weight insofar as the administrative case against her is concerned.
It should not immunize her from the criminal or administrative effects of
the act of committing adultery. Obviously, regardless of whether one agrees
with the wisdom of criminalizing adultery, a reasonable secular and rational
justification is available for the existence of the crime of adultery in the
statute books. Soledad, therefore, cannot hide behind her religion alone to
avoid the administrative charge.55
Another sample application of this model, this time implicating the
right of nonbelievers, involves two old provisions of the Penal Code. Under
Title Two of the Penal Code on crimes against the fundamental laws of the
state are the crimes of interruption of religious worship and offending
the religious feelings.56
Suppose a nonbeliever decided to do a silent protest five meters
away from the entrance to the Church of Holy Sacrifice in the Diliman
Campus of the University of the Philippines on a Sunday. His silent protest
is communicated in the form of a placard that says No Religion = Peace
in front and Grow Up! Stop Believing! at the back. Assuming his protest
falls within the doctrinal interpretation of Art. 133, can he raise the defense
of free speech or exercise of his right not to believe? In such a case, just as
free speech doctrine protects offensive speakers, so should the Free
Exercise Clause protect offensive nonbelievers. It is only when antireligious speech amounts to incitement that the government should be
allowed to step in and protect public peace. By these standards, Art. 133, if
solely directed against speech, should be subjected to the highest level of
scrutiny and, if not, should be scrutinized under the Obrien standard.
55 This, however, does not mean she should be, as the dissenters in Escritor would have it, subjected to
administrative sanction. As I have pointed out somewhere else, the respondent could have raised plausible
procedural concerns to avoid the sanction. See Florin T. Hilbay, Undoing Marriage, 42 SILLIMAN J. 141 (2006).
56 Art. 132. Interruption of religious worship. The penalty of prision correccional in its minimum period
shall be imposed upon any public officer or employee who shall prevent or disturb the ceremonies or
manifestations of any religion.
If the crime shall have been committed with violence or threats, the penalty shall be prision correccional
in its medium and maximum periods.
Art. 133. Offending the religious feelings. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious
worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the
feelings of the faithful.
2010]
605
CONCLUSION
The understanding of doctrine is, in many cases, shaped by the
normative implications of interpretations of historical fact. In this Article I
have presented a secularist viewpoint for reading the Free Exercise Clause
which, given the consequences of the model, rationalizes our embrace of the
irrational. There is no society in the world today that is so rational it has
thoroughly rejected superstition and its foremost but barely acknowledged
manifestationreligion. We do not know whether such a society will ever
exist or whether, given the present structural injustices modern life has
engendered, it is even possible or desirable. And so we accept as a reality of
life the almost inexplicable embrace by many of the transcendent, the
spiritual, and the mystical. We wear items of luck, have special numbers,
murmur incantations, and sometimes believe our actions are specially guided
or, to paraphrase an author, that the universe conspires to get certain things
done. But we should exercise caution with the way we deal with the
irrational, especially when it is presented otherwise or as a worldview that
conflicts with our present-day understanding of physical reality, social ethics,
and, most importantly, democracy.
The case of Estrada v. Escritor is an unfortunate instance of the
failure to recognize the deeply problematic association between Church and
State in Philippine history.57 To the extent that this is so, the decision is but
a logical continuation of Philippine societys failure to re-direct its ship
towards secular destinations and a journey into even more dangerous
sectarian waters.
The model I have proposed here is not only different
from the benevolent- neutrality/accommodation model embraced by the
Escritor majority in terms of the way the Free Exercise Clause should be
interpreted; it is also different in a more fundamental sensein the way it
constructs assumptions about our shared history and points to a future less
dependent on a tortured past. Whether the courts will listen is a matter of
faith.
- o0o 57 As I have pointed out somewhere else: The atheist is in a position to reply to the hypothetical
answer, given at the start of this essay, that hers is a nation that presupposes Christian values, whose
institutions assume the existence of a monotheistic god, and that this is not incompatible with secular civil
government. The straightforward reply is that this is the mark of false consciousness, of the inability to
historicize the reason why the Philippines has become dominantly religious in the first place. To say that this
form of god-belief is an essential part of hat we now call Philippine culture is no different from saying that the
Philippines is a wonderful name for this country, for monotheism and the national label are both powerful
symbols of three centuries of slavery. They are not badges of honor, only marks of continued colonial status,
now on autopilot, that consign the unmindful to a future of colonial culture capture. It is a clear instance of
the reach of colonialism, of the haunting presence of three hundred years of inability to narrate ones history,
and of the ability of the past to justify its astounding currency. See Hilbay, supra note 6, at 41.

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THE CONSTITUTIONAL STATUS OF DISBELIEF!

In a sworn latter-complaint dated July 27, 2000, complainant Alejandro Estrada

PHILIPPINE LAW JOURNAL

THE CONSTITUTIONAL STATUS OF DISBELIEF

doctrine being applied to exempt an otherwise adulterous relationship.8 But

PHILIPPINE LAW JOURNAL

THE CONSTITUTIONAL STATUS OF DISBELIEF

epistemological claims usually embedded in the narrative articulated in such

PHILIPPINE LAW JOURNAL

This comparison of the negative aspects of free speech and free

THE CONSTITUTIONAL STATUS OF DISBELIEF

period of almost half a century and in the name of promoting constitutional

PHILIPPINE LAW JOURNAL

or otherwiseamounts to a direct incitement to violence or poses a clear

THE CONSTITUTIONAL STATUS OF DISBELIEF

can inflict physical harm on another person as a form of symbolic speech

PHILIPPINE LAW JOURNAL

unopposed or morally neutral to it. Her argument for exemption is either

374 U.S. 398 (1963).

THE CONSTITUTIONAL STATUS OF DISBELIEF

PHILIPPINE LAW JOURNAL

Nonetheless, the peculiarity of having a system of precedents is

THE CONSTITUTIONAL STATUS OF DISBELIEF

of her subscribing to the doctrines of her faith; it is that the State is

PHILIPPINE LAW JOURNAL

middle of work week and thus the prospect of Sabbatarians earning

494 U.S. 872 (1990).

THE CONSTITUTIONAL STATUS OF DISBELIEF

assembling with others for a worship service, participating in sacramental

PHILIPPINE LAW JOURNAL

Smith, 494 U.S. at 1604.

THE CONSTITUTIONAL STATUS OF DISBELIEF

PHILIPPINE LAW JOURNAL

THE CONSTITUTIONAL STATUS OF DISBELIEF

Allowed by Law, Allowed by

Allowed by Religion, Prohibited by

Prohibited by Religion, Allowed by

Prohibited by Religion, Required by

Prohibited by Law, Required by

Here we see that the decision in Escritor furnishes the strongest

PHILIPPINE LAW JOURNAL

the prohibitor to take the upper hand and be followed by the

THE CONSTITUTIONAL STATUS OF DISBELIEF

PHILIPPINE LAW JOURNAL

Escritor II, at 81.

THE CONSTITUTIONAL STATUS OF DISBELIEF

SPEAKING AND (DIS)-BELIEVING

Kaufman v. McCaughtry, 419 F3d 678, Aug. 19, 2005.

PHILIPPINE LAW JOURNAL

Richard Dawkins, THE GOD DELUSION (2006).

THE CONSTITUTIONAL STATUS OF DISBELIEF

As a preliminary matter, the principle of separation of Church and

PHILIPPINE LAW JOURNAL

THE CONSTITUTIONAL STATUS OF DISBELIEF

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